The Supreme Judicial Court, ruling in a case with echoes of the controversy over the National Security Agency’s surveillance programs, said a warrant is required under the Massachusetts constitution protections against unreasonable search and seizure.

"It's an enormous victory for everybody in Massachusetts who cares about privacy,” said Matthew Segal, legal director of the American Civil Liberties Union of Massachusetts, which served as appellate counsel for the suspect in the case, Shabazz Augustine, who was being investigated in the 2004 homicide of his girlfriend, Julaine Jules of Malden…

In 5-2 ruling issued Tuesday, the state's highest court clarified the issues, providing both a clear definition of the privacy of phone records in the digital age, and also affording prosecutors a road map to using those records in their case against Augustine.

The court said it was possible that if the data covered only a short period, then obtaining the records under the federal Stored Communications Act without a search warrant might be acceptable. But it said it was clear that in Augustine's case, in which two weeks of data was obtained, the period was too long.

This was determined to be a violation of the state's constitution. The majority decision notes that cell site location information (CSLI) is much more revealing than the Third Party Doctrine anticipated. The court notes that CSLI is more intrusive than vehicular GPS tracking.

Indeed, as the defendant contends, because of the nature of cellular telephone use and technology, there is a strong argument that CSLI raises even greater privacy concerns than a GPS tracking device. In contrast to such a device attached to a vehicle, [...] because a cellular telephone is carried on the person of its user, it tracks the user's location far beyond the limitations of where a car can travel. See, e.g., United States vs. Powell, U.S. Dist. Ct., No. 12-cr-20052 (E.D. Mich. May 3, 2013) ("There are practical limits on where a GPS tracking device attached [to] a person's vehicle may go. A [cellular telephone], on the other hand, is usually carried with a person wherever they go"). As a result, CSLI clearly has the potential to track a cellular telephone user's location in constitutionally protected areas.

The court references the infamous pen register/trap and trace decision (Smith v. Maryland) that has served as the basis for warrantless access to phone records for everyone from local law enforcement to the NSA. But unlike FISA Judge Kollar-Kotelly's broad reading in favor of the Section 215 program, this court finds that the narrow scope of the original decision (outbound and incoming phone calls) doesn't stretch quite far enough to cover long-term warrantless access to a person's whereabouts as provided by CSLI.

CSLI is purely a function and product of cellular telephone technology, created by the provider's system network at the time that a cellular telephone call connects to a cell site. And at least with respect to calls received but not answered, this information would be unknown and unknowable to the telephone user in advance -- or probably at any time until he or she receives a copy of the CSLI record itself. Moreover, it is of course the case that CSLI has no connection at all to the reason people use cellular telephones. See Earls, 214 N.J. at 587 ("People buy [cellular telephones] to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a [cellular telephone] to share detailed information about their whereabouts with the police").

Even if cellphones are handy tracking devices, it's really not considered a "selling point." The expectation of privacy in location data may have been eviscerated by an outdated decision (1979's Smith v. Maryland) and an aggressive application of the Third Party Doctrine, but the state Supreme Court sees no reason to continue ignoring the reality of today's cellphone-inundated world simply because that case's implications haven't been recently examined by the US Supreme Court.

But the court does seems to slip up when attempting to find the point when a constitutional search becomes an unconstitutional one (in terms of Massachusetts' state constitution, not the United States'). Rather than simply require a warrant for cell site location data, it instead asserts that the length of the search determines its constitutionality.

Nonetheless, we also recognize that in terms of the constitutional question raised, GPS data and historical CSLI are linked at a fundamental level: they both implicate the same constitutionally protected interest -- a person's reasonable expectation of privacy -- in the same manner -- by tracking the person's movements. Given this intrinsic link, it is likely that the duration of the period for which historical CSLI is sought will be a relevant consideration in the reasonable expectation of privacy calculus -- that there is some period of time for which the Commonwealth may obtain a person's historical CSLI by meeting the standard for a § 2703(d) order alone, because the duration is too brief to implicate the person's reasonable privacy interest. But there is no need to consider at this juncture what the boundaries of such a time period might be in this case because, for all the reasons previously rehearsed concerning the extent and character of cellular telephone use, the two weeks covered by the § 2703(d) order at issue exceeds it: even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant's movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant's expectation of privacy safeguarded by art. 14.(37) Cf. Rousseau, 465 Mass. at 382 (no need to decide dimensions of individual's expectation "not to be subjected to extended GPS electronic surveillance by the government, targeted at his movements," because police GPS vehicle tracking for thirty-one days was sufficient to trigger defendant's reasonable expectation of privacy).

As I wrote in my mosaic theory article, it will be interesting to see how courts turn this into rules. For example, if one week is short-term enough not to get a warrant, what happens when the investigators get two one-week court orders individually instead of one two-week order? But then this is only a decision that regulates one state, and doesn't apply at the federal level, so perhaps the issue won't come up often enough to open the Pandora's Box that I think the mosaic theory implicates.

The dissenting opinion also seems to misstep, at first almost affirming the assertions made by the majority.

[W]hile it may seem as if Americans are always talking on their cellular telephones, they are actually doing so less than two per cent of the day. Therefore, there is a world of difference between telephone CSLI and registration CSLI in terms of the location points they will reveal and the degree to which they will intrude on personal privacy…

I recognize that, because of the mobility of a cellular telephone, telephone call CSLI will provide many location points outside a user's home or place of business, and these location points may provide a patchwork that will intrude on the user's privacy to the extent that they reveal where the user is located when making or receiving calls on the telephone. But this patchwork of location points, while intrusive of privacy, is less intrusive than the patchwork of personal affiliations that can be learned from traditional telephone toll records. I also recognize that the degree of intrusion on privacy will depend on the number of calls the user makes and receives. But this is also true about traditional telephone records; the more telephone calls a person makes and receives, the more will be revealed regarding the persons the individual speaks with and the frequency of those calls.

The problem here is that there's no indication that only "telephone call CSLI" was sought or will be sought in the future. Even if this case deals with only phone call CSLI, the fact is that location data entirely unrelated to phone calls (and the pen trap/trace statute) is being accessed without a warrant as well. The dissenting opinion tries to portray CSLI as roughly equivalent to call records, even while admitting there's a huge difference between continuously-generated location data and the much more limited inbound/outgoing phone call data.

The question should be: why didn't law enforcement get a warrant? It sought two weeks of historical data, meaning time wasn't really of the essence. In fact, the spokesman for the state's district attorney's office says it could have easily obtained one:

"We expect to prove that the affidavit submitted in 2004 would just as easily have supported a search warrant," said Jake Wark, a spokesman for the Suffolk County District Attorney.

So, why didn't they get one? Is this Third Party Doctrine loophole too tempting to resist? If it had just obtained a warrant, it wouldn't have had to pursue this case through multiple courts and would have been able to use the information it obtained during prosecution. Instead, because it took the easy way out, it has to gear up for yet another legal battle to appeal the decision. Massachusetts taxpayers' should be irate that they're footing the bill for a pointless legal battle when the impetus for the case is a warrant that could have been obtained, but wasn't.

It's not like law enforcement nor Intelligence Agencies can handle information given to them ahead of a crime (like they had for the Boston Marathon Bombers), so why have these loopholes anyway? A Warrant should ALWAYS be required for ANY information needed for trial that isn't publicly accessible.

Maybe make a single exception for kidnappings, since the victim could end up dead if not found in time.

Re:

Kidnapping cases could get a rubber-stamp no questions asked "we're officially recording this request" warrant to provide a paper trail to prevent abuse as a good compromise. Makes it clear that they're doing something legitimate instead of stalking their ex like someone in the NSA.